Nathan Pappas v. Department of the Air Force

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NATHAN PAPPAS, DOCKET NUMBER
Appellant, AT-0752-15-0407-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: February 11, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Bobby Devadoss, Esquire, and Elizabeth Morse, Esquire, Dallas, Texas, for
the appellant.
Daniel J. Watson and Leah Eccles Watson, Eglin Air Force Base, Florida,
for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal. Generally, we grant petitions such as this one only when:
the initial decision contains erroneous findings of material fact; the initial
decision is based on an erroneous interpretation of statute or regulation or the
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. See title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The appellant was employed as a Supervisory Systems Development
Engineer. Initial Appeal File (IAF), Tab 5 at 11. The agency proposed his
removal based on one charge of use of illegal drugs and one charge of misuse of a
Government travel card. Id. at 17-19. The appellant provided an oral response to
the proposal. Id. at 14. After considering the appellant’s response, the deciding
official sustained his removal. Id. at 12-13.
¶3 The appellant filed the instant appeal challenging his removal. 2 IAF, Tab 1.
He asserted that: (1) he was not guilty of the charges listed in the proposal and
decision letter; (2) the facts listed therein were false and inaccurate; (3) the
agency’s action did not promote the efficiency of the service; and (4) his removal
was motivated by discrimination. Id. In a later submission, the appellant
challenged the penalty and alleged that the agency violated his due process rights
because he was removed based upon the charge of conduct unbecoming of a
supervisor, which was not the charge listed in the proposal. IAF, Tab 18 at 2-6.
2
The appellant initially requested a hearing. IAF, Tab 1. However, he subsequently
moved for a decision based upon the written record. IAF, Tab 16.
3
The appellant also argued that the agency committed disability discrimination.
Id. at 16. The agency responded in opposition to the appellant’s allegations.
IAF, Tab 5 at 4-8, Tab 20 at 4-8.
¶4 The administrative judge issued an initial decision based upon the written
submissions sustaining the removal. IAF, Tab 22, Initial Decision (ID).
Specifically, he found that: (1) the agency proved both the charge of use of
illegal drugs and misuse of a Government travel card; (2) the appellant failed to
prove his due process affirmative defense because he was not removed based
upon a new charge not previously proposed; (3) the appellant failed to prove his
affirmative defense of disability discrimination because he was not a “qualified
individual” with a disability; (4) the agency established that its action promoted
the efficiency of the service; and (5) the penalty of removal did not exceed the
tolerable bounds of reasonableness. ID at 5-12.
¶5 The appellant has filed a timely petition for review challenging the initial
decision. 3 Petition for Review (PFR) File, Tab 1. Specifically, he argues that the
administrative judge erred in deciding his due process and disability
discrimination affirmative defenses and challenges the penalty determination by
asserting that the administrative judge should have, but did not, consider that he
requested a demotion in addition to a reassignment to a nonsupervisory position.
Id. at 6-9. The agency has responded in opposition to the appellant’s petition for
review. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant did not establish his due process affirmative defense because he
was notified of, and had the opportunity to respond to, the charges.
¶6 The appellant argues that the agency committed a due process violation by
proposing his removal based upon two charges but removing him on the basis of a
3
On review, the appellant does not challenge the initial decision to the extent that it
sustained the charges and found nexus. Petition for Review (PFR) File, Tab 1. We see
no reason to disturb these findings.
4
new, completely different charge of conduct unbecoming of a supervisor. PFR
File, Tab 1 at 6-8. We disagree because, as described below, the appellant was
notified of, and had the opportunity to respond to, all of the charges.
¶7 Procedural due process requires an agency to afford an employee notice of
the charges against him and of the agency’s supporting evidence and to give that
employee an opportunity to respond before effecting his removal. See Stone v.
Federal Deposit Insurance Corporation, 179 F.3d 1368, 1375-76 (Fed. Cir.
1999). Procedural due process guarantees are not met if the employee has notice
only of certain charges. Id. at 1376. In determining if an employee has received
adequate notice of a charge, the Board examines the employee’s reply to see
whether the employee defended against it. See, e.g., Thome v. Department of
Homeland Security, 122 M.S.P.R. 315, ¶ 22 (2015).
¶8 The agency proposed the appellant’s removal for “Use of Illegal Drugs and
Misuse of Government Travel Charge Card, both of which constitute Conduct
Unbecoming of a Supervisor.” IAF, Tab 5 at 17 (emphasis in original). The
proposal letter stated that, as a supervisor, the appellant was entrusted with the
responsibility to act on behalf of the agency and that his admitted and
demonstrated use of illegal drugs and association with such activity caused the
proposing official to lose trust and confidence in his ability to exercise sound
judgment as a supervisor and in his duties as a senior-level engineer. Id. at 18.
Regarding the misuse of a Government travel card charge, the proposal stated that
misuse of any Government resource violates the basic obligation to safeguard
Government resources for their intended purpose and that such conduct was not
expected of a supervisor. Id.
¶9 In his oral response, the appellant stated that his doctor recommended, and
he believed that, he should not have been a supervisor. IAF, Tab 5 at 14. He
requested a demotion and reassignment instead of a removal. Id. The appellant
described his psychological and addiction issues and how these related to his
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misconduct. Id. He also acknowledged the impact of his actions and apologized
for the effect of his conduct on his supervisors and the agency’s program. Id.
¶10 The decision letter stated that the appellant was being removed for conduct
unbecoming of a supervisor and found that the facts, as outlined in paragraphs
one, two, and three in the proposal, which specified the original charges and
described the underlying conduct, were fully supported by a preponderance of the
evidence. Id.; see id. at 17-18. We agree with the administrative judge that the
proposal as written was sufficient to put the appellant on notice of the specific
conduct with which he was being charged and the fact that the agency considered
that conduct to be unbecoming of a supervisor. The instant case is
distinguishable from those in which the Board has found a due process violation
based on the differing characterizations of the charge in the proposal and decision
letters. For example, in O’Connor v. Department of Veterans
Affairs, 59 M.S.P.R. 653 (1993), the Board found a due process violation where
the agency’s notice of proposed removal charged the appellant with having been
convicted of a crime but the removal decision was based on underlying conduct
that led to the alleged conviction. The Board in O’Connor found that the notice
of proposed removal gave the appellant no reason to think he was being removed
for his conduct, as distinguished from his conviction. Id. at 658. Here, by
contrast, the notice of proposed removal gave the appellant clear notice of the
basis for his removal. We therefore agree with the administrative judge that the
agency did not violate the appellant’s right to due process.
The appellant did not establish his affirmative defense of disability
discrimination.
¶11 The administrative judge found that the appellant had not established his
disability discrimination claim because he was “currently engaging” in the illegal
use of drugs and therefore was not eligible for protection under the Rehabilitation
Act. ID at 8-9. The appellant challenges this finding on review, arguing that he
successfully completed, or was participating in, a supervised drug rehabilitation
6
program and no longer engaged in the illegal use of drugs. PFR File, Tab 1
at 8-9. For the reasons discussed below, we agree with the administrative judge.
¶12 Under the Rehabilitation Act of 1973, as amended by the Americans with
Disabilities Act (ADA) of 1990, Pub. L. No. 101-336, to establish disability
discrimination, an employee must show, inter alia, that: (1) he is an individual
with a disability, as defined by 29 C.F.R. § 1630.2(g); and (2) he is a qualified
individual with a disability, as defined by 29 C.F.R. § 1630.2(m). 4 Miller v.
Department of the Army, 121 M.S.P.R. 189, ¶ 13 (2014). A “qualified individual
with a disability” does not include an employee “who is currently engaging in the
illegal use of drugs, when the covered entity acts on the basis of such
use.” 42 U.S.C. § 12114(a). However, under 42 U.S.C. § 12114(b), an individual
is not excluded from Rehabilitation Act protection as someone currently engaged
in the illegal use of drugs if he: (1) successfully completed a supervised drug
rehabilitation program where he is no longer engaging in the illegal use of drugs;
(2) has otherwise been rehabilitated successfully and is no longer engaging in
such use; (3) is participating in a supervised rehabilitation program and is no
longer engaged in such use; or (4) is erroneously regarded as engaging in such
use. See Adams v. Department of Labor, 112 M.S.P.R. 288, ¶ 17 (2009).
¶13 Nothing in the record shows that the appellant met any of these criteria
prior to the date his removal was proposed. Here, the agency proposed the
appellant’s removal in November 2014, and described specific prior conduct to
support its charge of illegal drug use—namely, that the appellant provided a
specimen that was positive for illegal drugs and that he admitted to using illegal
drugs. IAF, Tab 5 at 17-18; see id. at 28, 33, 35-37. After the appellant’s
4
As a Federal employee, the appellant’s claim of disability discrimination arises under
the Rehabilitation Act. However, the standards under the ADA have been incorporated
by reference into the Rehabilitation Act. 29 U.S.C. § 791(g). Further, the ADA
Amendments Act of 2008 (ADAAA), Pub. L. No. 110-325, 122 Stat. 3553 (codified at
42 U.S.C. §§ 12101 et seq.), applies to this appeal because the incidents in question
occurred after the January 1, 2009 effective date of the ADAAA.
7
admission of drug use and the collection of the positive specimen, but prior to the
proposal to remove him, the appellant entered a drug rehabilitation program. Id.
at 46. The appellant completed this program in August 2014, id., and, in
December 2014, during his response to the proposal, he stated that he had not
used drugs since that time, id. at 14. The appellant was removed in
February 2015. Id. at 12-13. The appellant’s admission to the misconduct,
completion of a rehabilitation program, and statement in his oral reply that he had
been drug-free do not negate this prior drug involvement. Therefore, we find that
the appellant used drugs recently enough to exclude him from coverage as a
qualified individual with a disability and that the agency could properly remove
him based, in part, upon his illegal drug use. Accordingly, the appellant has not
shown that he was entitled to the protections of the Rehabilitation Act.
¶14 Even assuming that the appellant was covered under the Rehabilitation Act,
the appellant failed to demonstrate that he was removed on the basis of his drug
addiction rather than on the basis of the charged misconduct. See
Adams, 112 M.S.P.R. 288, ¶ 18. Further, the appellant did not present evidence
that the agency tolerates the sort of misconduct that he committed from the
nondisabled. Id. The appellant is not immunized from being disciplined for
misconduct provided that the agency would have imposed the same discipline on
an employee without a disability. Burton v. U.S. Postal Service, 112 M.S.P.R.
115, ¶ 16 (2009). He has presented no evidence that the agency would not have
disciplined other employees without a disability for similar misconduct.
Accordingly, he has failed to establish his affirmative defense of
disability discrimination.
The appellant has not provided a basis for disturbing the penalty.
¶15 The appellant asserts that the administrative judge erred in his penalty
analysis by failing to acknowledge that the appellant had requested reassignment
to a nonsupervisory position during his response to the proposed removal. PFR
File, Tab 1 at 8. In determining the penalty, the deciding official noted that the
8
appellant had requested a demotion and reassignment, but found that a lesser
penalty than removal would not be in the best interest of the agency. IAF, Tab 11
at 15. The administrative judge did not specifically address the appellant’s
request, but found that the penalty of removal did not exceed the bounds of
reasonableness, given that the appellant was a supervisor; he intentionally and
repeatedly used illegal drugs over the course of a year and repeatedly misused his
Government travel card for almost 8 months; and he worked with military
aircraft, weapons and equipment systems programs, which rendered the sustained
misconduct serious, as work performed by him or under his supervision while he
was under the influence of drugs could result in an accident with the potential for
loss of life and property. ID at 11-12.
¶16 The administrative judge’s failure to mention the appellant’s request for a
demotion does not warrant an outcome different from that of the initial decision.
The Board will not disturb an administrative judge’s findings when he considered
the evidence as a whole, drew appropriate inferences, and made reasoned
conclusions. Broughton v. Department of Health & Human Services, 33 M.S.P.R.
357, 359 (1987). The administrative judge generally noted that the appellant
argued for a lesser penalty. ID at 11. His failure to mention all of the evidence
of record does not mean that he did not consider it in reaching his decision. See
Mithen v. Department of Veterans Affairs, 122 M.S.P.R. 489, ¶ 14 (2015).
Moreover, we agree with the administrative judge that the appellant’s length of
service and expression of remorse for his misconduct, although relevant, does not
render the penalty of removal outside the tolerable limits of reasonableness. 5
5
Similarly, although we have considered the appellant’s subsequent participation in a
supervised drug rehabilitation program, it does not render the penalty of removal
unreasonable under the circumstances. Cf. Norris v. Securities & Exchange
Commission, 675 F.3d 1349 (Fed. Cir. 2012) (explaining that the Board must consider
new, post-removal evidence in mitigation of the penalty that was not before the
deciding official).
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See title 5
of the U.S. Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit your
request by regular U.S. mail, the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after your
receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate U.S. district court.
See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court
no later than 30 calendar days after your receipt of this order. If you have a
representative in this case, and your representative receives this order before you
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do, then you must file with the district court no later than 30 calendar days after
receipt by your representative. If you choose to file, be very careful to file on
time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.